Aufderheide, Patricia and Peter Jaszi. Reclaiming Fair Use: How to Put Balance Back in Copyright. Chicago: The University of Chicago Press, 2011. Print.
Gerhardt, Deborah and Madelyn Wessel. “Fair Use and Fairness on Campus.” North Carolina Journal of Law and Technology 11 (Spring 2010): 1-71. Web. 20 April 2011.
Is My Student Work Copyrightable?
Per the Tufts Student IP policy, most academic work produced by Tufts students is owned by Tufts students. The university asserts some limited rights in three circumstances: 1) for dissertations and theses, 2) for work that is publicly performed on campus, and 3) for work produced by student workers in the course of their employment here.
As a student, you control the destiny of your original, copyrightable work. It is up to you to decide how you want to share it.
Can I apply Fair Use to something with a license?
It seems likely that a contract (namely a license) would trump copyright law, although this has not been thoroughly decided in the courts, so you should probably assume you need to abide by the terms of the license. For example, some click-through, end-user licenses may allow only for "personal use." In that case, you probably cannot rely on a fair use exemption even if you think you meet the four factor test. However, some licenses (like the Creative Commons ones) explicitly mention that they do not to impede on your fair use rights, so you could apply a fair use analysis to the licensed material.
Copyright is a series of bundled rights that evolve to the author at the moment an original work is created. Today, copyright lasts for the life of the author plus an additional 70 years. Copyright holders can decide how a work is used, copied, transformed, and publicly performed. Without permission from the copyright holder, or without conducting a four-factor Fair Use analysis, you cannot use copyrighted material. Works for which the copyright has expired are in the public domain, as are works produced by the U.S. government.
Fair Use is built into the copyright law to address the tensions between the rights given to the copyright holder and freedom of speech. If you want to use copyrighted material without requesting permission from the copyright holder, you must engage in a four factor Fair Use analysis.
1) Purpose and character of the use
- Is your use a non-profit educational use?
- Is it "transformative"? Does your use add "new meaning, expression, or message" to the original copyrighted work (Gerhardt and Wessel 59)?
2) Nature of the copyrighted work
- Is the original creative or more factual in nature? Using creative works is considered less fair than more factual works.
- Is the work unpublished or widely published? Using unpublished works is considered less fair than widely published works.
- Is the amount appropriate to the use?
- Did you use just what was necessary to get your point across?
4) Market Impact
- Would the original copyright holder be negatively impacted by your use?
- Is there a market to license the use?
Aufderheide and Jaszi argue that while you need to ask yourself all four questions to conduct a Fair Use analysis, the courts have shown they are most interested in the answers to the following three questions (24).
1) Is your use transformative?
2) Is the amount you are using of the original copyrighted work appropriate to your use?
3) Is your use consistent with the norms of your community?
Tufts' policy is that it is up to the individual to decide if their use may be fair or not based on their Four Factor analysis, however, help is available! Contact Martha Kelehan (firstname.lastname@example.org; 617-627-2092) with your questions.
The Creative Commons (CC) can be a great tool for copyright holders and individuals seeking copyrighted materials to work with. Copyright holders who want people to use their work can choose among a number of different licenses (from just attribution to attribution-non-commercial-no derivatives). And for people looking to work with copyrighted materials without having to do a Fair Use analysis (search Flickr for Creative Commons images), the Creative Commons can be a great solution to use and re-use creative work.
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